Queensland Consolidated Acts

EVIDENCE ACT 1977 - SECT 21AG

21AG Cross-examination

(1) The affected child may be cross-examined only if, under this section, a magistrate requires a party to call the child as a witness for that purpose.

(2) The requirement may be made, on an application, by—

(a) a magistrate at a direction hearing under the Justices Act 1886 , section 83A ; or

(b) the magistrate presiding at the committal proceeding.

(3) A magistrate at a direction hearing must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that—

(a) the party seeking to cross-examine the child has—

(i) identified an issue to which the proposed questioning relates; and

(ii) provided a reason why the evidence of the child is relevant to the issue; and

(iii) explained why the evidence disclosed by the prosecution does not address the issue; and

(iv) identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and

(b) the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial.

(4) The magistrate presiding at the committal proceeding must not require the child to be called as a witness for cross-examination unless the magistrate is satisfied that—

(a) the evidence before the court at the committal has identified an issue to which the proposed questioning relates that could not reasonably have been anticipated before the committal; and

(b) the party making the application has—

(i) provided a reason why the evidence of the child is relevant to the issue; and

(ii) explained why the evidence before the court does not address the issue; and

(iii) identified to the magistrate the purpose and general nature of the questions to be put to the child to address the issue; and

(c) the interests of justice can not adequately be satisfied by leaving cross-examination of the child about the issue to the trial.

(5) Without limiting the matters to which the magistrate may have regard for subsection (3) (b) or (4) (c) , the magistrate—

(a) must consider whether—

(i) the prosecution case is adequately disclosed; and

(ii) the charge is adequately particularised; and

(b) must have regard to the vulnerability of children, the general principles stated in section 9E and the undesirability of calling a child as a witness for a committal proceeding.

(6) The magistrate must give reasons for the magistrate’s decision on the application.

(7) If, under this section, the magistrate requires a party to call the child as a witness for cross-examination—

(a) the child’s evidence must be taken under subdivision 3 or 4 ; and

(b) when the magistrate decides the application, the magistrate must decide whether the child’s evidence is to be taken under subdivision 3 or under subdivision 4 , and how it is to be taken, and give a direction accordingly.

(8) In deciding whether the child’s evidence is to be taken under subdivision 3 or 4 , and how it is to be taken, the magistrate must have regard to the following—

(a) the distress or trauma likely to be suffered by the child when giving evidence and the need to minimise the child’s distress or trauma;

(b) whether a local court has an audio visual link and, if not, the availability of another appropriate place with appropriate equipment and facilities for taking or videorecording the child’s evidence under subdivision 3 or 4 ;

(c) whether the parties would be substantially inconvenienced if the proceeding were to be adjourned to another place mentioned in paragraph (b) that is not within the same locality as the court;

(d) the need for committal proceedings to be conducted expeditiously.

(9) In this section—

"local court" means—

(a) in relation to a magistrate at a direction hearing—a court at which the committal proceeding would ordinarily be held; or

(b) in relation to the magistrate presiding at the committal proceeding—the court in which the committal proceeding is being held or another court within the court precincts.

"magistrate" , presiding at a committal proceeding, includes justices presiding at the proceeding.